Court of Protection Law
Mental capacity, lasting powers of attorney, deputyship, best interests decisions, and welfare orders.
Introduction
The Court of Protection is a specialist court dealing with decisions about people who lack mental capacity to make specific decisions for themselves. Governed primarily by the Mental Capacity Act 2005, it makes decisions about property, finances, healthcare, and personal welfare. The court applies a decision-specific test for capacity and the 'best interests' principle when making decisions on behalf of incapacitated persons. The Office of the Public Guardian (OPG) supervises attorneys and deputies appointed under the Act.
Core Principles
Presumption of Capacity — Every adult is presumed to have capacity unless established otherwise. Capacity cannot be assumed to be lacking merely because of age, appearance, condition, or behaviour (s.1 MCA 2005).
Decision-Specific Test — Capacity is assessed in relation to the specific decision at the specific time. A person lacks capacity if they cannot understand, retain, use or weigh, or communicate the information relevant to the decision (s.2–3 MCA 2005).
Best Interests — Any act done or decision made under the MCA for a person who lacks capacity must be in their best interests, considering their past and present wishes, beliefs, values, and the views of relevant people (s.4 MCA 2005).
Least Restrictive Option — Before any act is done or decision made, regard must be had to whether the purpose can be achieved in a way less restrictive of the person's rights and freedoms (s.1(6) MCA 2005).
Lasting Powers of Attorney — The donor can appoint attorneys to make decisions about property/finances or health/welfare while they have capacity. LPAs must be registered with the OPG (ss.9–14 MCA 2005).
Deputies — The Court of Protection can appoint deputies to make ongoing decisions for persons who lack capacity. Deputies must act in the person's best interests and report to the OPG (ss.16–21 MCA 2005).
Deprivation of Liberty — Restrictions on a person's freedom that amount to deprivation of liberty require legal authorisation, either through the court or (in care settings) the DoLS/LPS framework.
Key Statutes
Leading Cases
Aintree University Hospitals v James
[2013] UKSC 67
P v Cheshire West and Chester Council
[2014] UKSC 19
Re F (Mental Patient: Sterilisation)
[1990] 2 AC 1
Common Scenarios
Parent loses capacity and has no LPA
Family members must apply to the Court of Protection for a deputyship order. The court assesses capacity and appoints a deputy to manage finances and/or welfare decisions.
Dispute about care home placement
If a person lacks capacity to decide where they live, the Court of Protection can make a welfare order determining residence. The court applies the best interests test, considering the person's wishes.
Concerns about attorney misusing funds
Report to the Office of the Public Guardian, which can investigate. The court can revoke the LPA if the attorney is not acting in the person's best interests.